Gustavo Ribeiro

This Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards differently among racial groups. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.” To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider a central objective of evidence law. But improving the accuracy of legal fact-finding is not an exclusive function of evidence law. Different substantive rules and doctrines also influence the accuracy of legal decisions. Albeit valuable, accuracy is neither free nor c...

This Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.”

To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider a central objective of evidence law. But improving the accuracy of legal fact-finding is not an exclusive goal of evidence law. Different substantive rules and doctrines also influence the accuracy of legal decisions. Albeit valuable, accuracy is neither free nor cheap. A second important consideration in evidence law is the cost of litigation—and the cost of fact-finding in particular. Substantive law also plays a role in determining the expense of adjudication. Since we cannot eliminate errors from an adjudicative system with limited resources, we must decide which errors we are willing to accept and which are worthy of spending more resources to avoid. The third example of evidentiary policy affected by substantive law, and the one this Article focuses on, is allocating the risk of mistaken judgments of fact between parties.

Standards of proof stand out as a particularly important evidentiary mechanism to distribute the risk of errors. The final error distribution, however, is also a function of other factors, such as the accuracy of the legal fact-finding and how rules are designed and applied. Substantive rules can alter the error distribution in a myriad of ways. Through graphs and other analytical tools, this Article develops a framework to identify and assess these impacts on various situations, including racial disparities between Black and White defendants.

The effects of substantive law on allocating error risk between parties raise important concerns for different doctrines, particularly for procedural due process. Courts have consistently held that procedural due process requires an error-distribution strongly biased in favor of criminal defendants. This requirement is primarily enforced through standards of proof and other evidentiary rules. However, this Article argues that substantive law changes can move us away from an error-distribution strongly biased in favor of criminal defendants. Scholars and practitioners often fail to consider these effects when discussing changes to existing laws. This omission comes at a potentially high cost for defendants’ procedural due process and other constitutional safeguards, especially for minority groups.

In my short contribution to this issue, I focus on Allen and Pardo proposal to redefine key evidentiary concepts in explanatory terms, with special attention to 'relevancy' and 'probative value'. I also join forces with Allen and Pardo in replying to critics to explanatory approaches to evidence law.

In this article I address a foundational question in evidence law: how should judges and jurors reason with evidence? According to a widely accepted approach, legal fact-finding should involve a determination of whether each cause of action is proven to a specific probability. In most civil cases, the party carrying the burden of persuasion is said to need to persuade triers that the facts she needs to prevail are “more likely than not” true. The problem is that this approach is both a descriptively and normatively inadequate account of reasoning with evidence in law. It does not offer a plausible picture of how people in general, and legal fact-finders in particular, reason with evidence. And it turns out that if we try to do what the approach tells us, we end up with absurd results. Faced with these difficulties, a group of evidence scholars has proposed an alternative. According to them, legal fact-finding should involve a determination of which hypothesis best explains the admitted evidence, rather than whether each cause of action is proven to a specific probability. My main contributions in this article are twofold. First, I elaborate on the many descriptive, normative and explanatory considerations in support of an explanation-based approach to standards. Second, I offer novel replies to pressing objections against that same approach.

This article focuses on the question of how decision makers with no relevant scientific background can (if at all) legitimately evaluate conflicting scientific expert testimonies and determine their relative reliability. Sceptics argue that non-experts can never reach justifiable conclusions regarding the merits of conflicting expert testimonies because they lack the fundamental epistemic capacity to make such judgement calls. In this article, I draw on works on epistemology, philosophy of practical reasoning, philosophy of science, science and technology studies, and legal theory in order to scrutinize recent proposals to solve the problem of conflicting scientific expert testimonies. Addressing this question is of ultimate importance due to the idea that immanent in the idea of rule-of-law there is an intellectual due process norm, which articulates that epistemically arbitrary legal decisions are also not legally justified. This article is divided into two Sections. In Section 2, I describe the basic philosophical inquiries underlying the debate about expert testimony. In particular, I first elaborate on the philosophy of testimony and its epistemic justifications, then move to the idea of epistemic deference, and finish with philosophical accounts of expertise. Section 3 presents the problem of conflicting scientific expert testimonies and analyses recent attempts to solve it as formulated by Ward Jones, Alvin Goldman and Scott Brewer. I argue that there is no single criterion (or set of criteria) upon which the non-expert could rely in order to make a rationally justified decision in each and every case in which he faces conflicting scientific expert testimonies. The alternative view here defended is to stop looking for an epistemic panacea and accept the idea that testimonial reliability operates differently within different kinds of testimony—and differently within the same kind of testimony at different times.

This article discusses the possible legalization of gambling in Brazil from a rational approach on regulatory objectives to be pursued. First, the main arguments that are used for legalizing the games in Brazil are analyzed. Next the authors identify and establish the potential costs and benefits that specialized literature associates with certain types of games. variables and elements currently on the outskirts of debate and that the authors consider important for the reflection of different lines of action to regulate gambling will be discussed. also, this article will bring forward a more detailed analysis of important variables for the sector. The aim of this paper is to point the debate on gambling in Brazil towards a direction that will make this economic activity viable.